Plaintiff
Cynthia Martinez (“Martinez”) brought this action
asserting claims against Defendant Gulf Coast Orthopedic
Center Corporation, doing business as The Bonati Institute
(“The Bonati Institute”), for violations of the
Age Discrimination in Employment Act (“ADEA”) and
the Florida Civil Rights Act (“FCRA”) (Doc. 1).
Currently before the Court is The Bonati Institute's
Renewed Dispositive Motion for Summary Judgment (Doc. 49), in
which The Bonati Institute argues that summary judgment
should be granted as Martinez failed to demonstrate that it
discriminated against her based on her age.[1] Namely, The
Bonati Institute argues that, under the burden-shifting
analysis, Martinez failed to establish that The Bonati
Institute's legitimate, nondiscriminatory reasons for her
termination constituted pretext for age discrimination.
Martinez responds in opposition, asserting that a reasonable
juror could conclude that The Bonati Institute's
purported nondiscriminatory reasons for her termination
constituted pretext (Doc. 51). The Bonati Institute
subsequently filed a reply brief, disputing Martinez's
arguments and assertions (Doc. 54). For the following
reasons, The Bonati Institute's Renewed Dispositive
Motion for Summary Judgment (Doc. 49) is granted.

I.
Background

Martinez
began working at The Bonati Institute on March 19, 1990, as
an X-ray technician and continued to do so until October 23,
2015, with a minor break in employment for a few months in
2003 to 2004 (Doc. 26-1, Deposition of Cynthia Martinez
(“Martinez Dep.”), at 4-7, 27). At the time The
Bonati Institute reinstated Martinez to her prior position
after her break in employment, Martinez was 51 years old and
received the same pay and benefits as she received prior to
her break in employment (Martinez Dep., at 6-7; Doc. 26-23,
January 17, 2018 Declaration of Rhonda Spinelli
(“January 2018 Spinelli Decl.”), at ¶3).
Martinez then worked for The Bonati Institute continuously
until her termination on October 23, 2015 (Martinez Dep., at
7).

During
her employment, Martinez complained to other employees,
including Dr. Robert Dunn (“Dr. Dunn”) and Rhonda
Spinelli (“Spinelli”), the director of Human
Resources for The Bonati Institute, regarding her lack of a
raise for several years despite the ability of The Bonati
Institute to fund the purchase of a new MRI machine, and she
subsequently approached Dr. Alfred Bonati (“Dr.
Bonati”) to request a raise, which Dr. Bonati denied
(Martinez Dep., at 12-17; Doc. 26-8, Deposition of Rhonda
Spinelli (“Spinelli Dep.”), at 6, 36, 55-56;
January 2018 Spinelli Decl., at ¶2; Doc. 26-15,
Deposition of Marcelo Eguino (“Eguino Dep.”), at
18; Doc. 26-20, Deposition of Oscar Aparicio (“Aparicio
Dep.”), at 10). When Martinez asked Spinelli why Dr.
Bonati denied her request for a raise, Spinelli told Martinez
that it was because Martinez left work early (Martinez Dep.,
at 17).

The
Bonati Institute originally altered Martinez's work hours
to allow her to care for her father up until his death in
2012, for which she received permission to arrive late to
work (Martinez Dep., at 17-18, 22, 31 & Ex. 6; Spinelli
Dep., at 23). Martinez continued to come in late after that
time, however (Martinez Dep., at 32; Spinelli Dep., at
22-24). In fact, after the death of her father, Martinez
admittedly continued to come in late, routinely stopped
taking a lunch break, and failed to clock out for lunch
(Martinez Dep., at 23-24, 44-46). Her time sheets reflect
that she consistently was tardy, failed to clock in or out
for lunch, and left early (January 2018 Spinelli Decl., Ex.
A). This pattern of behavior continued up until her
termination, including during The Bonati Institute's
implementation of a new MRI machine.

Also
during the implementation of the new MRI machine, Martinez
repeatedly stated that she did not believe The Bonati
Institute needed a new machine and additionally did not fully
assist in preparing the site for the new machine, failed to
show up on time for training, and failed to attend training
as requested by Marcelo Eguino (“Eguino”), the
vice president of digital marketing at The Bonati Institute
and the individual in charge of the acquisition and
implementation of the new MRI machine (Eguino Dep., at 11-17,
21-22; Doc. 26-15, Ex. 1, Declaration of Marcelo Eguino
(“Eguino Decl.”), at ¶¶2-6; Aparicio
Dep., at 15-16; Doc. 26-21, Deposition of Luis Lizardo
(“Lizardo Dep.”), at 29-30; Doc. 54, Ex. 1,
Declaration of Elaine Lois Sadeghi (“Sadeghi
Decl.”), at ¶7). Instead, Martinez attended
intermittently and requested that Luis Lizardo
(“Lizardo”), the MRI technician, attend the
training sessions for the new MRI and train her when he
finished (Martinez Dep., at 12, 22-23; Sadeghi Decl., at
¶7; Lizardo Dep., at 23, 29). At the same time, Martinez
informed Eguino that she would train when she could between
patients (Martinez Dep., at 11, 33-37). Attending training
between patients was not what Eguino directed, however
(Martinez Dep., at 9-12, 23, 33-37; Eguino Dep., at 11-19;
Lizardo Dep., at 29). Given Martinez's failure to train
on the new machine as directed and her complaints regarding
the acquisition of the machine, Eguino reported
Martinez's behavior to Dr. Bonati and Spinelli (Eguino
Dep., at 11-23).

During
the course of Martinez's employment, Spinelli insists
that she spoke to Martinez about her lack of work discipline
at least five times and spoke to Martinez about her work
hours a minimum of five times, although Spinelli did not
document those discussions (Spinelli Dep., at 34). Spinelli
also indicated that she spoke to Martinez several times prior
to termination about her refusal to clock out for lunch
(Spinelli Dep., at 49). Elaine Sadeghi, who became the clinic
manager in May 2015 and began supervising the radiology
department in June 2015, additionally spoke to Martinez about
her habits of ignoring assigned work hours, arriving to work
late, leaving early, and not clocking out for lunch (Sadeghi
Decl., at ¶¶3-5).

According
to Spinelli, all of Martinez's violations, either
standing alone or in combination, could be characterized as
misconduct in the workplace providing sufficient cause for
termination (Spinelli Dep., at 55-56). To that end, in
determining whether to discipline or terminate an employee,
The Bonati Institute implemented a discretionary progressive
disciplinary policy, including the following steps: (1)
corrective counseling/verbal warning; (2) formal
reprimand/written warning; (3) final warning/suspension; and
(4) termination (Martinez Dep., Ex. 5, at 21; Spinelli Dep.,
at 8, 68-69 & Ex. 6, at 21). In pertinent part, the
Employee Handbook describes the progressive discipline policy
as follows: “The Institute may utilize a system of
progressive discipline at its sole discretion in cases of
misconduct or unacceptable performance. … Disciplinary
action may begin at an advanced stage of the process or may
result in immediate termination based upon the nature and
severity of the offense, the employee[']s past record
with the Institute and any other relevant
circumstances” (Martinez Dep., Ex. 5, at 21). The
Employee Handbook therefore indicates that the progressive
disciplinary policy is optional, and disciplinary action can
start at any step, including termination, without necessarily
going through each of the prior steps.

In this
instance, the decision to terminate Martinez came after
discussions occurred among and between Dr. Bonati, Spinelli,
Sadeghi, and Eguino. Prior to terminating Martinez, Dr.
Bonati spoke to Eguino regarding Martinez's failure to
properly train on the new machine (Bonati Dep., at 9-12,
14-15, 18-19; Eguino Dep., at 17-22). Approximately the same
week that Martinez was terminated, Spinelli discussed
Martinez's employment issues with Dr. Bonati, which she
had also discussed with Sadeghi and Eguino, including
Martinez's refusal to train on the new machine, slacking
off on job duties, tardiness, attendance issues, lack of
cleanliness, and disregard for orders from Eguino, as the
project supervisor for the new machine (Spinelli Dep., at
28-30, 45; Eguino Dep., at 17-22). According to Spinelli, Dr.
Bonati indicated that he already knew of the attendance
issues, as he saw Martinez leaving early frequently (Spinelli
Dep., at 28). After discussing the employment issues with Dr.
Bonati, Spinelli asked Dr. Bonati what he wanted her to do,
and Dr. Bonati directed her to terminate Martinez (Spinelli
Dep., at 29). In that regard, Dr. Bonati made the decision to
terminate Martinez's employment with The Bonati
Institute, based upon information provided to him from
Spinelli and Eguino (Spinelli Dep., at 25, 28-30, 69-70;
Bonati Dep., at 7-8, 9-12, 14-15, 18-19; Eguino Dep., at
20-24).

After
speaking with Dr. Bonati about terminating Martinez, Spinelli
met with Martinez and Sadeghi to inform Martinez of the
termination of her employment with The Bonati Institute
(Spinelli Dep., at 25). During the meeting, Spinelli
explained to Martinez that she was being terminated because
“she just was not doing the job that [was] expected of
her and that she was to do; she only did what she had to do,
what she could get away with, and it wasn't enough
anymore” (Spinelli Dep., at 26). Spinelli also told
Martinez that she did not seem as enthusiastic about the job
as she used to be and was not doing everything that needed to
be done (Spinelli Dep., at 31-32). Martinez indicated that
she was told that her purported “lack of
enthusiasm” formed the basis for her termination
(Martinez Dep., at 7-8, 38).

Following
Martinez's termination, The Bonati Institute replaced
Martinez with Christine Kallas (“Kallas”), who
assumed Martinez's job duties and responsibilities
(Spinelli Dep., at 56 & Ex. 2). At the time that Kallas
replaced Martinez, Kallas was over the age of 40 but younger
than Martinez (Spinelli Dep., at Ex. 2, at 5). The other
individuals who followed in the position after Kallas were
also over the age of 40 (Spinelli Dep., at 57).

Prior
to her termination, Martinez understood that she could be
fired at any time and for no reason at all (Martinez Dep., at
39, 46-47). As the Employee Handbook indicates, since
employment at The Bonati Institute “is based on mutual
consent, either the employee or the institution is privileged
to terminate employment without notice or requirement of
cause” (Martinez Dep., Ex. 5, at 26). Notwithstanding,
though Martinez admits she has no idea why she was fired and
only assumes her termination was because of her age, Martinez
believes that her age provided the basis for her termination
because The Bonati Institute replaced her with a younger
employee, because she lacked enthusiasm, and because The
Bonati Institute believed she did not want to learn how to
use the new MRI (Martinez Dep., at 29-30, 47-49). As a
result, Martinez initiated this action asserting claims for
age discrimination under both the ADEA and the FCRA (Doc. 1).

By the
instant motion (Doc. 49), The Bonati Institute renews its
request for summary judgment on Martinez's claims,
arguing that, although Martinez can establish a prima
facie case for discrimination, it established
legitimate, non-discriminatory reasons for terminating
Martinez's employment, including insubordination to a
senior manager regarding the implementation of the new MRI,
refusal to train on the MRI, failure to follow her assigned
schedule, refusal to clock out during lunch, sleeping while
at work, and her allegedly rude, disrespectful behavior
toward other employees of The Bonati Institute. Additionally,
the Bonati Institute argues that Martinez fails to
demonstrate that any of its proffered reasons for termination
constitute pretext. In response (Doc. 51), Martinez
essentially contends that summary judgment should not be
granted because The Bonati Institute's reasons for
termination constituted pretext for age discrimination.
Namely, Martinez argues that (1) The Bonati Institute failed
to clearly and consistently articulate the reasons for her
termination; (2) The Bonati Institute failed to follow its
progressive disciplinary policy; (3) Dr. Bonati made
age-based comments to Martinez's coworker that
demonstrate discriminatory animus; (4) the statements by
Spinelli regarding Martinez's lack of enthusiasm and
failure to embrace new technology are natural correlations to
age and fundamentally lie at the core of age discrimination;
and (5) Dr. Bonati was a conduit or “cat's
paw” for Spinelli's age-based discriminatory animus
toward Martinez.

II.
Standard of Review

Summary
judgment is appropriate where the movant demonstrates that
there is no genuine dispute as to any material fact and that
the movant is entitled to judgment as a matter of law.
Fed.R.Civ.P. 56(a); see Celotex Corp. v. Catrett,477 U.S. 317, 322 (1986); Kernel Records Oy v.
Mosley, 694 F.3d 1294, 1300 (11th Cir. 2012). A dispute
about a material fact is “genuine” if the
evidence is such that a reasonable jury could return a
verdict for the non-moving party. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). The existence of
some factual disputes between the parties will not defeat an
otherwise properly supported summary judgment motion;
“the requirement is that there be no genuine
issue of material fact.” Id. at
247-48 (emphasis in original). The substantive law applicable
to the claims will identify which facts are material.
Id. at 248. In reviewing the motion, courts must
view the evidence and make all factual inferences in a light
most favorable to the non-moving party and resolve all
reasonable doubts about the facts in favor of the non-movant.
Dadeland Depot, Inc. v. St. Paul Fire and Marine Ins.
Co., 483 F.3d 1265, 1268 (11th Cir. 2007) (citation
omitted).

III.
Discussion

A.
McDonnell Douglas Framework

The
ADEA makes it unlawful for an employer “to fail or
refuse to hire or to discharge any individual or otherwise
discriminate against any individual with respect to his
compensation, terms, conditions, or privileges of employment,
because of such individual's age[.]” 29 U.S.C.
§ 623(a)(1).[2] Essentially, the ADEA prohibits employers
from discriminating against an employee who is at least 40
years of age on the basis of that employee's age. 29
U.S.C. §§ 623(a)(1), 631(a). An aggrieved employee
may establish a claim of unlawful discrimination under the
ADEA through either direct or circumstantial evidence.
Kragor v. Takeda Pharms. Am., Inc., 702 F.3d 1304,
1308 (11th Cir. 2012). Martinez admittedly denies any direct
evidence of discrimination regarding her termination, such as
a statement from anyone at The Bonati Institute indicating
that she was fired because she was too old (Martinez Dep., at
8). Indeed, when asked regarding the basis for her belief
that she was terminated due to age, Martinez pointed only to
the comment from Spinelli at the time of Martinez's
termination regarding Martinez's lack of enthusiasm, the
fact that The Bonati Institute hired someone younger than
her, and possibly the fact that, as she interpreted the
situation, she did not get a chance to learn new technology
(Martinez Dep., at 8, 47). As noted, she admits that, other
than her speculation, she has no idea why she was fired and
only assumed her termination was because of her age (Martinez
Dep., at 29-30). Notably, however, Martinez denies ever
hearing any comments regarding her age or inability to work
due to her age (Martinez Dep., at 8).

Accordingly,
where the record fails to reflect any direct evidence of
discrimination, as in the instant case, the claims are
governed by the familiar burden-shifting scheme set forth
under McDonnell Douglas Corp. v. Green, 411 U.S.
792, 802-03 (1973). See Chapman v. AI Transport, 229
F.3d 1012, 1024 (11th Cir. 2000) (en banc).
Initially, the plaintiff must establish a prima
facie case of age discrimination, which creates a
presumption that the employer unlawfully discriminated
against the employee. Kragor, 702 F.3d at 1308. To
establish a prima facie case for an ADEA
discrimination claim, a plaintiff must demonstrate that (1)
she was a member of the protected age group, (2) she was
subjected to adverse employment action, (3) she was replaced
by or otherwise lost a position to a younger individual; and
(4) she was qualified to do the job. Id.;
Chapman, 229 F.3d at 1024. Once a plaintiff
demonstrates these elements, the burden shifts to the
defendant to articulate a legitimate, nondiscriminatory
reason for the adverse action. Wilson v. B/E Aerorspace,
Inc.,376 F.3d 1079, 1087 (11th Cir. 2004);
Chapman, 229 F.3d at 1024. The defendant need not
demonstrate that the proffered reasons actually motivated the
adverse employment action, but, instead, must produce
evidence that raises a genuine issue of material fact as to
whether it discriminated against the plaintiff.
Chapman, 229 F.3d at 1024.

If the
defendant can articulate one or more legitimate,
nondiscriminatory reasons, the presumption of discrimination
is rebutted, and the burden of production shifts to the
plaintiff to offer evidence that the alleged reason
constitutes pretext for illegal discrimination.
Wilson, 376 F.3d at 1087; Chapman, 229 F.3d
at 1024. At that point, the plaintiff must come forward with
evidence sufficient to permit a reasonable factfinder to
conclude that the reasons proffered by the defendant were not
the actual reasons for the adverse employment decision.
Chapman, 229 F.3d at 1024-25. In establishing
pretext, the plaintiff must show both that the reason was
false and that the discrimination was the real reason for the
adverse employment action. See Brooks v. City Comm'n
of Jefferson Cty., Ala., 446 F.3d 1160, 1162 (11th Cir.
2006) (citation omitted). Notably, the fact that the
employer's proffered reason was mistaken does not
establish pretext; instead, the plaintiff must demonstrate
that the challenged employment action was motivated by
discriminatory animus. See Wilson, 376 F.3d at 1092.
To establish pretext, therefore, the plaintiff must show
“such weaknesses, implausibilities, inconsistencies,
incoherencies, or contradictions in the employer's
proffered legitimate reasons for its action that a reasonable
factfinder could find them unworthy of credence.”
Combs v. Plantation Patterns, 106 F.3d 1519, 1538
(11th Cir. 1997) (quotation and citations omitted). Further,
in attempting to show pretext, the plaintiff must meet the
employer's reason “head on and rebut it”
rather than simply recasting the employer's reason,
substituting his or her business judgment for that of the
employer, or otherwise quarreling with the wisdom of the
decision. Alvarez v. Royal Atl. Developers, Inc.,
610 F.3d 1253, 1265-66 (11th Cir. 2010). If the plaintiff
fails to proffer sufficient evidence to create a genuine
issue of material fact regarding whether each of the
defendant's articulated reasons is pretextual, the
defendant is entitled to summary judgment on the
plaintiff's claim. Chapman, 229 F.3d at 1024-25.

i.
Legitimate Nondiscriminatory Reasons

The
Bonati Institute does not dispute that Martinez can
demonstrate a prima facie case of age discrimination
(Doc. 49, at 21).[3] Accordingly, the burden shifts to The
Bonati Institute to produce legitimate, nondiscriminatory
reasons for Martinez's termination. The Bonati Institute
need not persuade the Court that the proffered reasons
actually motivated the decision to terminate Martinez,
however. Combs, 106 F.3d at 1528. Rather, The Bonati
Institute must only produce admissible evidence which would
permit the trier of fact rationally to conclude that the
termination decision was not motivated by discriminatory
animus. Combs, 106 F.3d at 1528.

As The
Bonati Institute notes, an “‘employer may fire an
employee for a good reason, a bad reason, a reason based on
erroneous facts, or for no reason at all, as long as its
action is not for a discriminatory reason.'”
Alexander v. Sonny's Real Pit Bar-B-Q, 701
Fed.Appx. 931, 935 (11th Cir. 2017) (quoting Nix v. WLCY
Radio/Rahall Commc'ns, 738 F.2d 1181, 1187 (11th
Cir. 1984)). To that end, The Bonati Institute offers several
legitimate, nondiscriminatory reasons for Martinez's
termination. Namely, The Bonati Institute contends that it
fired Martinez due to her insubordination to a senior manager
regarding the implementation of the new MRI, refusal to train
on the MRI, failure to follow her assigned schedule, refusal
to clock out during lunch, sleeping while at work, and her
allegedly rude, disrespectful behavior toward other employees
of The Bonati Institute (see Spinelli Dep., at
17-19, 22-24, 37-39, 51-54, and Ex. 2-3; Doc. 31, Ex. 1;
Martinez Dep. At 12, 22-23, 32-37, 39-41, 42-46; Bonati Dep.
At 6-15; Aparicio Dep., at 6-10; Eguino Dep., at 12-14,
16-19, 21; Lizardo Dep., at 21; March 2016 Spinelli Decl., at
¶¶ 5-20; January 2018 Spinelli Decl., Ex. A;
Sadeghi Decl., at ¶¶4-8). Given the legitimate,
nondiscriminatory reasons provided, The Bonati Institute met
its burden. The burden then shifts to Martinez to demonstrate
that such reasons constitute pretext.

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;ii.
...

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